Teresia Wanjiru Mbugua v Moses Gikonyo Hiram [2021] KEELC 1635 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND COURT AT THIKA

ELC APPEAL NO. 39 0F 2020

TERESIA WANJIRU MBUGUA .....................................APPELLANT

VERSUS

MOSES  GIKONYO HIRAM..........................................RESPONDENT

( Being an Appeal  from the Ruling and Order  delivered on 15th September 2020,  by

Hon  A.Maina  in Thika ELC Case No. 336 of 2012 Moses Gikonyo

Hiram…Vs…  John Kamau & Anor)

JUDGMENT

The Appellant  Teresiah Wanjiru  Mbugua  was the 2nd Defendant  while the Respondent  Moses Gikonyo Hiram, was the  Plaintiff  in Thika    Chief Magistrates Court  ELC Case No. 336 of 2012.

By a Notice of Motion Application dated  1st September 2016, the  2nd Defendant ( Appellant) sought for orders that;

1. That the process server  Simon Kamau Ngigi be summoned  to be cross examined  upon the veracity  or otherwise of his Affidavit  of Service sworn on  8th June 2012.

2. That the Decree  dated 11th October 2013,  against the 2nd Defendant be set aside .

3. That the 2nd Defendant  be allowed to file her Defence  as per the  draft attached hereto

4. That the 2nd Defendant be allowed  to file list of witnesses, statements  and List of documents

5. That cost  hereof be provided for.

The Application was premised on the grounds that the  Court has the powers to set aside the Decree . That failure to Enter Appearance was not deliberate as the 2nd Defendant was neither served with  the Summons to Enter Appearance  nor the Plaint as alleged by the Process Server. That if the Decree is not set aside, the 2nd Defendant stands to suffer  great prejudice as  her title deed  would be canceled.

That  the 2nd Defendant only realized the existence of the suit  on 24th August 2016,when she was summoned to  Githurai Kimbo Police Station  and informed of the existence of the case. Further, that the 2nd Defendant has had possession of the suit property since 2010, and  as a result of the  Ex parte Decree, the 2nd Defendant has been charged with offences under Section 91 and 320 of the  Penal Code of  Forcible Detainer and Obtaining Registration by False Pretences. That the Application  has been made without delay.

That the 2nd Defendant has  a prima facie case  valid and arguable  case  against the Plaintiff’s case as per the  draft Defence  and it is in the interest of justice that the 2nd Defendant is allowed to defend the suit  and not be condemned unheard . That she has been greatly prejudiced in the case of execution. Further that the  2nd Defendant had sued the Plaintiff in ELC No. 1385 of 2013,  and the Plaintiff’s aware of the said suit . That the Plaintiff has not  produced a title deed like the 2nd Defendant,  and the letter from Mwana  Muka Housing Cooperative Society cannot  supersede the title deed.

In her Supporting Affidavit, Teresia Wanjiru Mbugua averred that  she has had possession of the land and has developed it . That  had she been served with the suit paper, she had a retained Counsel to appear on her behalf and that in the ELC Suit, she had obtained  interim orders and the said suit was filed after the Plaintiff tried to interfere with her ownership. She therefore urged the Court to allow the Application

The Application was opposed and the Plaintiff (Respondent)   filed a Replying Affidavit sworn by 6th July 2017  by  Moses Gikonyo Hiram who averred that  the Application was an afterthought and had been brought after an  inexcusable and inordinate delay . That the Application   is bad in law and  therefore incompetent. It was his contention that  the Summons and Plaint in respect of the matter  were served on  the 2nd Defendant on  11th May 2012, as per the Affidavit of Service of  Simon Kamau Ngigi  sworn on 8th June 2012.

That the 2nd Defendant was aware of the suit, but  chose not to oppose it  as she knew she had been conned by the 1st  Defendant . Further, that the 2nd Defendant  was aware that they had several meetings  to resolve the matter at the offices of Mwana Mukia  Housing Cooperative Societyand she was informed that her documents had been forged. That the 1st  Defendant  had fraudulently sold the suit property to the 2nd Defendant  and after she discovered the same, she complained to the  Police  and he was charged  at theMakadara Law Courts vide Criminal Case No. 570 of 2011. That he was the one who developed the plot upto the current status, and the 2nd Defendant had attempted to enter into the premises, hence the charges. That he is the bonafide purchaser for value   and he was allocated the same after balloting.

The Application was canvassed by way of written submissions and on 15th September 2020 , Hon A.M Maina delivered her Ruling and stated that ;

“Having considered all the above mentioned factors; I find that the Application  dated 1st September 2016 by the 2nd  Defendant lacks merit and I dismiss the same with costs to the Plaintiff.’

The Appellant being aggrieved with the above determination  filed the instant Memorandum of Appeal dated  23rd September 2020,seeking for orders that;

a) This Appeal be allowed

b)  The Ruling and Order  of the Chief Magistrate  Court at Thika  in ELC Case No. 336 of 2012, dismissing the Appellant Application  dated 1st September  2016, be set aside  and instead an order striking out  the suit for  want of jurisdiction.

c)  The costs  of this Appeal be borne by the Respondents

d) Any other  order that the Court may deem  just in the circumstances.

The grounds  upon which the  appeal is  grounded  are;

1. The Learned Magistrate  erred in law and  fact in relying on the Affidavit of service served by the  process server when the  said Affidavit of service  was in challenge and the prayer sought  by the Appellant to have the  process server cross examined  which prayer could not be granted  after the Court  directing  that the Application  dated 1st  September 2020 be canvassed by way of written submissions.

2. The Learned Magistrate  erred in Law and in fact  in holding that the Appellant knew of the  existence of ELC Suit No. 336  of 2012 as deponed by one Alexander  Ochwo Alela when in fact that averment was made on 29th September 2014  after the Judgment had been entered  on 11th October 2013, and the  Decree issued  on 16th December 2013.

3. The Learned Magistrate  erred in Law  and in fact in holding that the  Judgment entered  on 11th October 2013  was a regular Judgment  when in fact there was evidence to the contrary.

4. The Learned Magistrate erred in Law  and in fact in holding  that the  Judgment entered on  11th October 2031  was regular, when  in deed the Court had no jurisdiction  to enter the said Judgment nor  entertain the proceedings in the first  case.

5. The Learned Magistrate  erred in Law and in fact  in holding that the Application  for setting aside had been brought  7 years later, while in fact  such  delay had been adequately explained.

6. The Learned Magistrate erred in Law and in fact  in  holding that the Appellant had failed  to obtain stay orders  for the execution of the decree,  when in fact it is not an issue for consideration  in considering an Application for setting aside  of a decree of a Judgment . The said issue  was also a legal issue  that was to be handled by the  Appellant’s Advocate and not  the Appellant. .

7. The Learned Magistrate  erred in Law and in fact  in holding that the Appellant  had delayed in having the matter fixed for  hearing after  the order/ Ruling issued on 2nd May 2019  in ELC Case No. 47 of 2018  when the delay had been adequately explained .

The Appeal was canvassed with by way of written submissions and the  Appellant through the Law  Firm of  Ngania & Company Advocates  filed his written submission dated 13th May 2021, and  submitted that the Learned Magistrate fell in error in failing to determine the issue of service merely because the Court had directed  that the matter proceed by way of written submissions. It was thus submitted that  upon the  Court considering the Application  and realizing that the cross examination  of the process server  was a crucial  prayer in the  Application, the trial magistrate was obligated  to order attendance of the Process Server  in order to reach a just determination  and that the Learned magistrate  upheld technicality beyond the call of duty.

It was further submitted that the Affidavit of Service  referred  to by the trial Court  of one Alexander  Ochwo Alela  was sworn on 6th May 2015,  after the Judgment was entered on 11th October 2013,  and it was therefore erroneous for the court to hold that the Appellant was aware and as such the same could not be set aside. It was the Appellant further submissions that  the suit was  filed on 9th  May 2012,  and the Applicable law at the time was  the Land Registration Act 2012, and Section  2 of the Act defined the Court as  the Environment and Land Court  established under  the Environment and Land Court Act 2011. That the said Section was amended  in 2016, to include other Courts having jurisdiction  on maters relating to land. That at the time of filing of the suit the Magistrate Courts had no jurisdiction  and the  amendment introduced in 2016 is not Applicable to the instant suit.  It was further submitted that the  transitional  provision  under  Section 30 of the Environment and Land Court  Act No. 19 of 2011is not applicable in this matter  as the case was not pending before  any Court of competent jurisdiction  by virtue of  Section 159 of the Registered  Land Act, and as such  the same does not provide any reprieve to the Respondent. That Jurisdiction can be raised at any point  and the Decree made by the Court was without jurisdictionThat the Appellant filed an Application on 28th July 2020,  explaining the delay in setting the matter down  for hearing  and it was therefore not  correct for the Court to hold that  the Appellant had not explained the delay. The Appellant further submitted that he had demonstrated that the Court did not have jurisdiction  and further the Magistrate did not exercise  her discretion judiciously,  when she dismissed the Application and the Court was  urged to allow the Appeal.

The Respondent filed his written submissions dated 5th July 2021, and submitted  that it wouldn’t have been  possible  to cross examine  the process server since  the Court directed that the  Application be heard by way of written submissions and the Appellant was cognizant of this fact and chose to   remain silent  when the onus was on them to move the Court and seek direction. That there is a presumption of  service  and the burden lies  on the party  questioning it to show that the return  is incorrect. That cross examination is  not given as  a matter of right,  and it is discretional  power. The Respondent relied on the case of  Nyoro Construction   Company Limited…Vs… Prashnth Projects  Ltd  & Another (2015) eklr . It was further submitted that the Defendant knew all along  of the existence  of the suit but ignored the proceedings and when she was served with the Judgment,  she suddenly woke  up from deep slumber and filed a similar suit  which is an abuse of the Court process .

On jurisdiction  it was submitted  that the  Chief Justice  Willy Mutunga( as he then was)  issued practice   Directions  vide Gazette Notice  No. 5178 on 25th  July 2014  and directed that ;

“ Magistrates Courts  shall continue to hear and determine all cases relating  to the Environment  and  the use  and occupation  of and title to land( whether pending or new) in  which the Courts have the requisite jurisdiction .

That the value of  the suit property is less than Kshs. 5 millionand hence it is clear that the Court had the requisite pecuniary  jurisdiction  to deal with the matter.  Further that the issue of jurisdiction does not arise  as it was not possible  for the Plaintiff (Respondent) to file the case in the Environment & Land Court even  before the inaugural  Judges  of the Court were appointed as the Respondent merely exercised  his right of access to justice.

That the  inordinate delay cannot  be explained away by lack of knowledge  of proper procedure  or ignorance as the Defendant was not acting  in person but instead  was  represented throughout . That the Decree was  issued on 11th October 2013,  and served upon the Defendant  and in total disregard of procedure, the  Appellant  filed  a suit in  the  Environment and Land Court  at Milimani. Further that the Respondents have demonstrated  that the trial Court had jurisdiction  to entertain the matter, the Appellant was served  and therefore  default  Judgment entered  was regular and the  Appellant’s case is riddled  with delay.

The Court  has  considered the Grounds of Appeal as well as submissions by counsels and the authorities cited. Being a first appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own conclusions.In Selle -vs- Associated Motor Boat Co. [1968] EA 123,it was expressed:

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif -v - Ali Mohamed Sholan(1955), 22 E. A. C. A. 270).”

The Court having carefully read and considered the written submissions,  the  record of Appeal,  the  grounds thereof  and the Judgment by the trial Court and finds that the issues for determination are;

1. Whether the Magistrates Court had Jurisdiction to hear and determine the matter.

2. Whether the Appel is merited

1. Whether the Magistrates Court had Jurisdiction to hear and determine the matter.

It is not in doubt that jurisdiction is everything and without jurisdiction the Court has no option but to  down its tools. It has been held by several courts that an issue of jurisdiction can be raised at any point even for the first time on Appeal. See the case of Kenya Ports Authority …vs… Modern Holdings [E.A] Limited [2017] Eklr,where the  Court held that ;

This Court in the case ofAdero & Another …Vs.. Ulinzi Sacco Society Limited[2002] 1 KLR 577, quite sufficiently summarised the law on jurisdiction as follows;

“1…………..

2. The jurisdiction either exists or does not ab initio and the non constitution of the forum created by statute to adjudicate on specified disputes could not of itself have the effect of conferring jurisdiction on another forum which otherwise lacked jurisdiction.

3. Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.

4. Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.

5. Where a cause is filed in court without jurisdiction, there is no power on that court to transfer it to a court of competent jurisdiction.

6. ………………..

7. ………………..”(Our emphasis).

We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:

“….at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the Court itself

- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.”

The suit at the trial Court was filed  on 9th May 2012 as evidenced by the proceedings . The  Appellant has  submitted that  the law that was applicable at the time of the filing of the suit  by the Respondent was the Land Registration Act  2012, which defined the  Court to mean the Environment  & Land Court  established  under the Environment  & Land Court Act 2011, and as the suit was filed  on 9th May 2012, the Court that had jurisdiction  was the Environment & Land Court. The Respondent in  his submissions has acknowledged that   the Chief Magistrates Court had  no jurisdiction. However, the

Chief Justice  Willy Mutunga,  finally calmed  the waters when he issued  Practice Directions  vide Gazette  Notice No. 5178and the Respondent submitted  that  the  said  Directions then empowered the  Court to hear and determine the matter.

A  Court’s jurisdiction flows from either the Constitution or the statute. It is trite that  a Court cannot  arrogate itself  Jurisdiction nor can  the parties or anyone else arrogate it  Jurisdiction which it does not have. See the  Case of Samuel Kamau Macharia & another  v Kenya Commercial Bank Ltd & another (supra) the Court stated;

“[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

The Respondent has acknowledged that at the time of filing the suit, the Court did not have jurisdiction. The Respondent has further contended that the Court then acquired its jurisdiction  as per the Practice Directions granted by the  Hon. Chief  Justice. However, as noted above, the Practice Directions are only but Directions and  are not an Act of Parliament. It is thus not in doubt that Jurisdiction could only flow from the Constitution and or statute and the said Jurisdiction cannot stem from elsewhere. See the case ofJohn K. Malembi ….Vs… Trufosa Cheredi Mudembei & 2 others [2019] eKLRwhere the Court of Appeal  held that ;

39. On perusal of the record, it is clear that as at the time when the Gazette Notice was published, the suit was part heard. Therefore the practice directions purported to invest the High Court with authority to conduct the matter until its conclusion.

40. The fundamental question to ask is whether practice directions could confer jurisdiction and the answer is an emphatic no. The confusion seems to stem from the words “….as may be directed by the Chief Justice….”  The confusion, to our mind, is more apparent that real.  The Chief Justice could not direct that the High Court exercise a jurisdiction it did not have. All that the transitional clause did was allow him to direct otherwise than the continued hearing of the matters pending in the hiatus between the promulgation of the Constitution and the coming into operation of the Environment and Land Court. That direction could foreseeably take the form of some or all of the cases being held in abeyance until that Court was operationalized. Once it was operational, however, the Chief Justice had no further role.

41. It has long been established that jurisdiction is everything and without it the Court must down its tools otherwise everything after that becomes a nullity. Nyarandi, J famously made the point in OWNERS OF THE MOTOR VESSES “LILLIANS” V CALTEX OIL (KENYA) LTD(Supra);”

“A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

42. For the foregoing reasons, we find that the learned judge misdirected himself on issue of jurisdiction. We hereby set aside in entirety the judgment of the High Court delivered on 17/11/2015 in Eldoret HCCC NO. 248 of 2000.  We direct the suit between the parties be and is hereby transferred to the Environment and Land Court which has jurisdiction to hear and determine the matter.  Each party to bear his/its own costs.

From the foregoing, this Court finds and holds that as the suit was filed on 9th May 2012, heard and a determination made in 2013,the Court that  was vested with the requisite jurisdiction to hear and determine the matter  was the   Environment & Land Court . The  Magistrates Court specifically the  Senior  Principal Magistrate Court was not clothed  with the requisite jurisdiction  to hear and determine the matter and thus the said proceedings and the Judgment  rendered and subsequent orders are null and void ab initio.

3. Whether the Appeal is merited

The Appellant has sought for the setting aside of the  Ruling and subsequent orders of the trial Court  dated 15th  September 2020 . The said Ruling had dismissed the Appellant’s Application dated 1st September 2020, seeking to set aside the orders of the Court and the Ex parte Judgment and allow the Appellant to file her Defence. The Court having held that the trial Court did not have jurisdiction and the Judgment and subsequent orders of the Court are null and void ab initio. It then follows that the Appeal is merited. The Court finds and holds that the  trial Court did not have jurisdiction  to hear and determine the matter . Consequently the Judgmental and subsequent Orders are set aside and  the suit is struck out for want of jurisdiction.

The Upshot of the foregoing is that the Court finds the Appeal merited in so far as the trial Court did not have jurisdiction to hear and determine the matter. Consequently the suit at the lower Court is struck out for want of jurisdiction.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 8TH DAY OF OCTOBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Lucy